Brewer v. Brewer

Decision Date31 March 2004
Docket NumberNo. 2704,2704
Citation156 Md. App. 77,846 A.2d 1
PartiesLawrence J. BREWER, Jr. v. Gretchen K. BREWER.
CourtCourt of Special Appeals of Maryland

Vincent M. Wills (Patrick W. Dragga, Kevin G. Hessler, on the brief), Rockville, for appellant.

Bryan Renehan (Brodsky, Greenblatt & Renehan, on the brief), Gaithersburg, for appellee.

Panel: JAMES R. EYLER, KRAUSER, SHARER, JJ.

KRAUSER, Judge.

The Circuit Court for Montgomery County granted appellee, Gretchen K. Brewer, an absolute divorce from appellant, Lawrence J. Brewer, Jr. It then divided the parties' assets, awarded Mrs. Brewer indefinite alimony, and granted her a monetary award—all to the parties' mutual dissatisfaction. Indeed, the only action taken by the court of which the parties appear to approve was the grant of the divorce itself. And their cross appeals reflect their displeasure.

In his appeal, Mr. Brewer challenges the trial court's award of indefinite alimony, its grant of a monetary award, and various aspects of the court's division of the parties' property. His challenges are contained in four questions he presents for our review. Stripped of argument and reworded, they are:1

I. Did the trial court abuse its discretion in awarding indefinite alimony of $1,500.00 per month to Mrs. Brewer? II. Did the trial court err in granting Mrs. Brewer a monetary award of $175,000.00?

III. Did the trial court err in failing to decree Mr. Brewer's ownership interest in the furniture that he inherited from his parents and in failing to order Mrs. Brewer to return that property to Mr. Brewer?

IV. Was the trial court's finding, that Mr. Brewer had given Mrs. Brewer jewelry that he inherited from his mother, clearly erroneous?

In her cross-appeal, Mrs. Brewer also challenges the alimony award, the monetary award, and aspects of the court's division of the Brewers' property. But she takes the dispute one step further and questions the court's failure to award her counsel fees. Her objections are contained in the four questions she poses. Edited for swift apprehension, they are:

V. Did the trial court err in failing to make an award of counsel fees to Mrs. Brewer?

VI. Did the trial court err when it granted Mr. Brewer's motion for reconsideration and reduced its monetary and alimony awards?

VII. Did the trial court err in finding that Mr. Brewer did not give the furniture he had inherited to Mrs. Brewer?

VIII. Did the trial court err in failing to impute a higher rate of return to Mr. Brewer's investment assets?

For the reasons set forth below, we shall vacate the trial court's grant of indefinite alimony and a monetary award and remand this case to that court for reconsideration as outlined by this opinion. We shall also vacate the trial court's denial of counsel fees so that it may reconsider that denial in light of any changes it may wish to make to the alimony or monetary award on remand.

Background

The parties were married on September 24, 1966. They have two children, Mark and David, who are now adults. In December 2000, after almost thirty-five years of marriage, Mrs. Brewer moved out of the marital home. Two months later, Mrs. Brewer filed for an absolute divorce.

At the time of the trial, Mr. Brewer was sixty-three years old. He has a bachelor of science degree in electrical engineering and has completed course work for a master's degree in industrial administration. During the marriage, Mr. Brewer was, in the words of the trial court, the "primary breadwinner" of the family. From 1973 to 2000, he worked for BAE SYSTEMS North America. And, in December 2000, he retired from his position as a "project manager" for that company.

At retirement, Mr. Brewer was earning approximately $85,000 per year. He now receives, monthly, $1,381 in Social Security benefits; $1,832 in pension benefits from BAE SYSTEMS; and $833 per month in investment income, for a total of $4,046 per month. Apart from his monthly income, Mr. Brewer has substantial assets, having recently inherited, upon the death of his mother a little more than a year before the parties separated, three quarters of a million dollars.

Mrs. Brewer is two years younger than her former husband. She was sixty-one years old at the time of the trial. She has a bachelor of science degree from Columbia University and a master of science degree in human behavior from the University of Maryland. Both of these degree programs included training in the field of nursing. When the parties married, Mrs. Brewer was working full-time as an instructor in a nursing program. But, after the birth of the parties' first son in 1969, Mrs. Brewer stayed at home for a year and a half to care for him. Thereafter, she worked part-time as a visiting nurse.

After the birth of the parties' second son in 1973, she again stayed at home, this time for two years, to care for both children. When she returned to the workforce in 1975, she worked part-time as a nurse so that she could attend graduate school. Upon completing her master's degree in 1979, Mrs. Brewer took a full-time position at the National Institutes of Health, where she worked as a "clinical educator." She held that position for approximately five years, before accepting a position in 1984 as a "project director" with a consulting firm. The "tremendously demanding" hours of that job caused her to seek an alternative form of employment after working there only a year and a half. The parties agreed that Mrs. Brewer would "do something perhaps from home" where she could supervise the parties' then-teenage sons. That led to a job with Mary Kay Cosmetics.

Although Mrs. Brewer began selling Mary Kay Cosmetics on a part-time basis, she eventually assumed a full-time position with Mary Kay. For the last seventeen years she has worked for Mary Kay and presently serves that organization as a full-time sales director. She is technically classified as an independent contractor, and her salary is based on commission. She earns, according to her financial statement, $1,054.92 per month. But that is not her only source of income. Having reached the age of sixty-two during these proceedings, she is now eligible for social security benefits.

The marriage was troubled almost from the start. Mrs. Brewer testified that Mr. Brewer physically abused her throughout the marriage. That abuse began, she maintained, as early as her pregnancy with the parties' second son in 1973 and continued until 1999, a year before the parties separated. Indeed, Mrs. Brewer claimed that she left Mr. Brewer because of the physical abuse, fearing that it would only increase after his retirement. At trial, Mr. Brewer "accept[ed] responsibility for the acts of violence." In fact, he conceded: "I think [Mrs. Brewer] left because of the physical abuse and the fact that we were incompatible."

On December 13, 2000, the parties separated. On that date, Mr. Brewer arrived home to find the house empty and Mrs. Brewer gone. She left, taking with her $17,000 from the parties' Vanguard Prime Money Market Fund and drawing down $74,000 from the their home equity line of credit.

The Proceedings

After leaving the marital home, Mrs. Brewer filed a complaint for absolute divorce, alleging voluntary separation and constructive desertion, and seeking a resolution of all disputes between the parties with respect to ownership of property, a division of the parties' pension and retirement funds, pendente lite and permanent alimony, counsel fees, health insurance coverage, and a monetary award.

The trial court granted Mrs. Brewer an absolute divorce from Mr. Brewer on the grounds of constructive desertion, explaining that "the living conditions were made virtually unbearable by the way Mr. Brewer, by his own admission, treated his wife during the years of a long, long, marriage." It then awarded Mrs. Brewer indefinite alimony in the amount of $2,000 per month. In granting that award, the trial court stated:

The first thing the Court must consider is the ability of the party seeking alimony to be wholly or partly self-supporting.

The Court finds that Mrs. Brewer, the plaintiff in this case, is clearly capable. She is capable of being self-supporting, but clearly not at this juncture.

The Court does not sit in a vacuum. The Court is not isolated from the rest of society. The Court realizes—and I find it appropriate for judicial notice— that there are great disparities between the genders with respect to the opportunity in the employment market.

The trial court then observed:

[T]he notion that a woman in her 60s could simply step out, so to speak, and be gainfully employed in a career at this juncture, it is possible.
People do it, but it will be difficult to do, and so I do find that while on the one hand she is capable of being self-supporting, that is not something that she will imminently be able to.

Turning to the question of how much time Mrs. Brewer would need to gain sufficient training or education to enable her to find suitable employment, the court stated:

The second factor is the time necessary for the parties seeking alimony to gain sufficient education or training to enable that party to find suitable employment.
Well, the education and training factor is also an area that there is great gender disparity in our country, particularly with—I hesitate to characterize what the 60s are.
I am not going to say whether it is old or young. I am rapidly approaching that myself, but we know that it is— many things in life that were easier when we were younger become more difficult when we are older, and that is a factor that the court certainly must consider.
Notwithstanding that, there was no testimony given that Mrs. Brewer plans with respect to going back to school or anything of that nature.

The court then considered the standard of living of the parties and their respective contributions to the well-being of the family:

Now, the standard of living the parties have established during the
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